Opinion
No. 09-50156.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 6, 2010.
U.S. Attorney CR, Esquire, Rebekah Young, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Michelle Betancourt, Esquire, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:07-CR-03345-BEN.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Raul Jimenez-Lopez appeals from the 52-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Jimenez-Lopez contends that the district court erred when it applied a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2, because his prior conviction for lewd or lascivious acts with a child under 14 years of age, in violation of Cal.Penal Code § 288(a), does not qualify as a crime of violence. He contends that Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), overruled United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), and United States v. Medina-Maella, 351 F.3d 944 (9th Cir. 2003). This contention is foreclosed by United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir. 2009).
Jimenez-Lopez contends that Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), effectively overruled Medina-Villa. This contention fails. See Nijhawan, 129 S.Ct. at 2300.
Finally, Jimenez-Lopez's contention that we must call for en banc review based on a conflict between Estrada-Espinoza and Medina-Villa is without merit. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-1016 (9th Cir. 2009) (recognizing that Estrada-Espinoza and Medina-Villa set out "two different generic federal definitions of `sexual abuse of a minor'" and looking to both definitions to determine whether a conviction under Cal.Penal Code § 261.5(d) qualifies as the generic federal crime of "sexual abuse of a minor," under the categorical approach).